So did the Supreme Court that overturned Roe v. Wade. Two years ago Thursday, the Supreme Court followed established constitutional principles and dismissed a lawsuit seeking to restrict access to mifepristone, a drug used to induce medical abortions. In essence, the decision upheld the Food and Drug Administration’s regulations regarding mifepristone, which is crucial to reproductive rights. Currently, an estimated 63 percent of abortions in the United States are medically induced, rather than surgically induced.
The Mifepristone lawsuit should never have gotten this far. Challenges to the drug should have been dismissed in a lower court whose staunchly conservative justices, in their desire to restrict abortion, ignored basic rules about who can sue in federal court. We can be grateful that an ultra-conservative Supreme Court led by Chief Justice John G. Roberts Jr. found the lower courts wrong and unanimously dismissed the case, finding that the plaintiffs lacked standing to sue.
The Food and Drug Administration approved mifepristone in 2000 as part of a two-drug combination therapy to induce abortion. In 2016, the FDA made the drug more available, allowing it to be used up to the 10th week of pregnancy instead of the 7th week. The FDA also reduced the number of in-person clinical visits from three to one, allowing nurse practitioners to prescribe and dispense mifepristone. Five years later, the FDA removed the in-person administration requirement. Mifepristone was the only drug with such restrictions.
In 2022, four anti-abortion groups and several anti-abortion doctors filed a lawsuit challenging the FDA’s approval of mifepristone. They filed the lawsuit in the Amarillo branch of the U.S. District Court for the Northern District of Texas, which has only one federal judge. This lawsuit is no coincidence. Judge Matthew Kacsmarik, appointed by President Trump, is known as an opponent of abortion rights. He wrote a shocking opinion overturning the FDA’s approval of mifepristone. This is the first time in history that a judge has overturned the FDA’s approval of a drug.
A conservative panel of the U.S. Court of Appeals for the Fifth Circuit found that Judge Kacsmarik erred in overturning the FDA’s 2000 approval of mifepristone, but said the FDA’s actions in making the drug more available were “arbitrary and capricious.” If the Supreme Court had agreed, it would have been much harder for people seeking abortions to get mifepristone.
What both the district court and the appeals court ignored was the issue of standing. To sue in federal court, a plaintiff must prove that he or she was personally harmed by the conduct at issue, that the harm was caused by the defendant, and that the harm can be remedied by a favorable federal court decision. The Supreme Court’s decision on Thursday underscored that very understanding of standing.
Justice Brett M. Kavanaugh wrote the opinion for the Court, clearly declaring: “Under Article III of the U.S. Constitution, a plaintiff’s desire to make it harder for others to obtain a drug does not establish standing to litigate.”
During oral argument in March, plaintiffs’ attorney Erin Hawley suggested that anti-abortion doctors could be harmed by the FDA’s mifepristone decision because they might be forced to perform abortions if women who had taken the drug ended up in the emergency room with complications. The justices asked whether that had actually happened, but Hawley could not cite a single example. As Justice Kavanaugh wrote in his opinion, “The FDA does not mandate abortions. [doctors] “Plaintiffs have not demonstrated, and cannot demonstrate, that their consciences are violated by FDA’s actions,” he said.
While this ruling will come as a relief to those who support abortion rights, overturning Roe v. Wade does not change the reality that the right to abortion is not recognized. As a result, 24 states have enacted laws that severely restrict reproductive health care, including medication abortion, and abortion opponents will undoubtedly continue to seek ways to restrict access to mifepristone, including through pending state lawsuits.
Erwin Chemerinsky is an Opinion contributor and dean of the University of California, Berkeley School of Law. His latest book is Worse Than Nothing: The Dangerous Fallacy of Originalism.
